Supreme Court Upholds Lawyer–Client Confidentiality

Why in the News?

1. The Supreme Court of India, in a landmark judgment on 31 October 2025, ruled that police and investigating agencies cannot summon advocates merely to reveal what their clients told them during legal consultation.
2. The judgment interprets Section 132 of the Bharatiya Sakshya Adhiniyam (BSA), 2023) and clarifies the balance between confidentiality in legal communication and the needs of investigation.

Key Highlights

1. Background of the Case
   1. The case originated when an advocate representing an accused in a loan dispute was summoned by the investigating officer.
   2. The Gujarat High Court upheld the summons, saying the lawyer’s “non-cooperation” was hindering the investigation.
   3. The issue gained national attention after the Enforcement Directorate (ED) summoned two senior Supreme Court advocates in a corporate case involving ESOPs (Employee Stock Options).
   4. The move was strongly condemned by the Supreme Court Bar Association (SCBA) and other lawyer bodies for violating the right to legal representation.
2. The Legal Context — Privilege under the Bharatiya Sakshya Adhiniyam (BSA), 2023
   1. The BSA (2023) replaced the old Indian Evidence Act, 1872, and codifies modern evidence principles.
   2. Section 132 of the BSA protects communications between advocates and their clients, declaring them privileged — i.e., they cannot be disclosed in court or to investigative agencies.
   3. However, this privilege has three exceptions:
      1. If the client consents to disclosure.
      2. If the communication is made for an illegal purpose.

• If the advocate observes the commission of a crime during the period of employment.

21. The law ensures that clients can speak freely with their lawyers, a cornerstone of the right to a fair trial under Article 21.

3. The Legal Questions before the Court
   1. The Supreme Court examined two critical questions:
      1. Can an advocate be summoned by an investigative agency merely because they represented a client in a criminal case?
      2. If an advocate’s involvement goes beyond professional duties (e.g., assisting in a crime), should such summons require judicial oversight before being issued?
   2. The Bar and the State’s Arguments
      1. The Bar’s Stand:
         1. The summons to lawyers violates Articles 19(1)(g) (freedom to practise profession) and Article 21 (right to life and personal liberty).
         2. Section 132 of the BSA protects clients, but there is no mechanism protecting advocates from being coerced into disclosures.

• They proposed a two-step safeguard:
  1. Judicial pre-approval by a magistrate before a summons is issued.
  2. Review by a committee of legal peers (at district, state, and national level) to decide if the communication falls within privileged limits.

1. The Bar also proposed a “dominant purpose test” — i.e., to check whether the communication was made for genuine legal advice or for illegal acts.

1. The State’s Stand:
   1. The State argued that lawyers cannot be treated differently from ordinary citizens if they are suspected of crimes.
   2. Creating a special process for advocates would amount to unjustified classification, violating Article 14 (equality before law).

• However, the State also admitted that communications for legal advice are protected and cannot be summoned casually.

5. The Supreme Court’s Judgment and Key Directions
   1. Lawyer–Client Communication is Privileged
      1. The Court held that lawyers cannot be summoned to disclose confidential information shared by clients.
      2. Such privilege is not a shield for wrongdoing, but a safeguard to protect the administration of justice and effective representation.
   2. When Can a Lawyer Be Summoned?
      1. Only in exceptional cases — when communications are used for illegal purposes or to conceal a crime.
      2. Any such summons must clearly state the facts justifying it and be approved in writing by a superior officer not below the rank of Superintendent of Police.
   3. Distinction Between Communications and Materials
      1. The confidential advice between a lawyer and client is protected.
      2. But documents or electronic devices (e.g., phones, laptops) can be sought — only through proper legal procedure under Section 94 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), with judicial supervision.

• The lawyer and client must be informed, and only relevant data can be accessed; all unrelated client information must remain sealed.

1. Remedy for Advocates
   1. Lawyers can challenge summons before courts under Section 528 of BNSS, ensuring judicial review without creating new bureaucratic layers.
2. In-house Counsel Not Fully Protected
3. In-house lawyers employed by companies are not covered by full privilege as per Section 132, since they lack professional independence.
4. However, they enjoy limited protection for genuine legal advice provided in their role.

Implications

1. Strengthening Legal Ethics and Confidentiality: The ruling reinforces the trust between client and lawyer, ensuring that no client hesitates to share full information with counsel.
2. Protection from Investigative Overreach: Investigating agencies can no longer misuse summons powers to intimidate or extract client details from lawyers.
3. Balance between Rights and Investigation: The judgment upholds individual rights under Articles 19 and 21, while still allowing lawful investigation in exceptional cases.
4. Clarity in Procedure for Digital Evidence: The Court introduced a clear line between protected communications and physical materials, ensuring privacy even in the digital era.
5. Impact on Corporate Legal Practice: By excluding in-house counsel from full privilege, companies may need to restructure their compliance and legal advisory mechanisms.

Challenges and Way Forward

Conclusion

The Supreme Court has reaffirmed a fundamental pillar of justice — confidentiality between a lawyer and client. By limiting the powers of police and investigative agencies, the judgment upholds the integrity of the legal profession and ensures citizens’ right to fair representation. It strikes a careful balance between protecting individual rights and maintaining the state’s power to investigate criminal conduct. Going forward, the challenge will be to ensure consistent implementation and prevent misuse of both privilege and investigative authority.